Opposition Brief — Whitmore v. Ormsbee

OP —

JIN 18 1946

CHARLIS ELMORE ¢

OLE

SUPREME COURT OF THE UNITET

OCTOBER TERM, 1946

No. 210

W. E. WHITMORE,

Appellant,

vs.

R. L. ORMSBEE, Commissioner or tue Bureau or Reve-

nue, State or New Mexico

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE DISTRICT OF NEW MEXICO

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

rw C. ©. McCuiion,

Attorney General of New Mezico;

ww Tuxos. C. McCarry,

Assistant Attorney General

of New Mezico,

/aécthur W.Scharfeld Counsel for Appellee.

INDEX

Suazsecr Inpex

Statement opposing jurisdiction and motion to dis-

en cceceubesccecsseeucsonnsces

es Pere eee eee eee ee eee

Appellee’s statement of the case and facts......

Propositions and authorities .................

1. District Court did not err in holding li-

cense, tax or registration fee not direct

and substantial burden on interstate

CE Ne re sépedeceye ees we

n

2. Appellant has plain, speedy and efficie

remedy at law or in equity in the courts

GE a caccsacnescccscocce

Tasie or Cases CiTep

Hillsborough Township v. Cromwell, 66 Sup. Ct.

ee ca bh nus bss KGb reed eS hsan ee sesso:

Lougee v. New Mexico Bureau of Revenue Commis-

sion, 42 N. M. 115, 76 P. (2d) 6......--.---- 00.

Pacific Telephone & Telegraph Co. v. Tax Commis-

sion of Wash., 297 U. 8. 403, 301 U. 8. 183........

Postal Telegraph Cable Co. v. Mayor, etc., of Balti-

more, 156 U. 8. 210, 15 Sup. Ct. 356, 39 L. Ed. 399. .

Union Brokerage Co. v. Jensen, 322 U. 8. 202, 64

Sup. Ct. 967, 88 L. Ed. —, 152 A. L. R. 1072.......

Srarutes Crrep

Act of New Mexico Legislature of 1935, Section 76-

1416 of the New Mexico Statutes Annotated, 1941

Compilation ........-.:::seseeeerte tree e ences

Constitution of New Mexico, Article 6, Section 13...

Constitution of the United States, Article I, Section

8, Clause 3........ cece cece eee eeeeeeeeeeeeins.

Johnson Act, 48 Stat. 775, as amended, 50 Stat. 738,

Sec, 24 (1) of the Judicial Code, 28 U. 8. C. A,

Be, G0 AD. oc nce cc esevccvcencevvcevecesesers:

—5495

ownre

i)

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 210

W. E. WHITMORE,

vs.

R. L. ORMSBEE, Commissioner or THe Bureau or Reve-

woe, State or New Mexico

Appellant,

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

(APPELLEE'S STATEMENT OPPOSING JURISDIC-

TION ANI MOTION TO DISMISS OR AFFIRM)

APPELLEE'S STATEMENT AS TO JURISDICTION

AND MOTION TO DISMISS OR AFFIRM

The Appellee, believing that the matters set forth below

will demonstrate the lack of substance in the questions

raised by this appeal, files this his statement in opposition

to Appellants’ statement as to jurisdiction. Appellee in-

cludes herein his motion to dismiss the appeal, or in the

alternative to affirm the judgment of the District Court on

2

the ground that the questions raised on behalf of Appellants

are so unsubstantial as not to need further argument.

While the cause is one which otherwise would be review-

able by the Supreme Court on direct appeal from the

District Court, Appellee asserts that the unsubstantial

character of the grounds stated by Appellants is so ap-

parent on the face of the record as to warrant the court

in summarily disposing of the appeal at this stage of the

proceeding.

The records on file in this action show that the District

Court, sitting as a Three Judge Court, reviewed and made

its decision and judgment after a full hearing in which

each of the parties were given an opportunity to present

evidence, Trial Briefs, and argue the evidence and law

pertaining thereto.

The matters here relied upon by Appellee are more

particularly stated below:

Summary

The Appellant herein, by its appeal, presents two issues,

out of the six Assignments of Error, which Appellee deems

decisive on the question of jurisdiction of the District

Court:

1. The Act of 1935, Sec. 76-1416 of the New Mexico

Statutes Annotated, 1941 Compilation, requiring the

obtaining of a single license tax or fee of $1.00 for

registration. It being contended by Appellant that

this provision is unconstitutional by reason of Art. I,

Sec. 8, Clause 3, United States Constitution, and

2. That the ‘‘ Johnson Act’’, 48 Stat. 775, as amended,

50 Stat. 738, Sec. 24 (1) of the Judicial Code, 28 U. S.

C. A., See. 41 (1), which provides that ‘‘no district

court shall have jurisdiction of any suit to enjoin,

suspend, or restrain the assessment, levy, or collection

of any tax imposed or pursuant to the laws of any

—

3

State where a plain, speedy, and efficient remedy

may be had at law or in equity in the courts of such

State,’ is applicable to the present case.

The above issues were decided in favor of Appellee in

the comprehensive, clear and concise opinion of the District

Court, and it appears Appellee can add but little, if any-

thing, thereto.

Appellee’s Statement of the Case and Facts

The Statement of the Case and Facts being so clearly

and concisely stated in the ‘Opinion of the Court’’ and

‘Findings of Fact,’’ a copy of same being attached hereto

as Appendixes ‘‘A’’ and ‘‘B,’’? Appellee deems it would be

superfluous to encumber the record by any additional State-

ment of Case or Facts.

Propositions and Authorities

I

District Court Did Not Err m Holding License, Tax, or

Registration Fee Not Direct and Substantial Burden on

Interstate Commerce.

Section 76-1416 of the N. M. 1941 Compilation provides,

in part, as follows:

‘‘No person shall engage or continue in any business

within this state, subject to taxation under this act,

unless he shall file with the Tax Commission (Bureau

of Revenue) an application for a lvense. * ° °

Provided that a person who has heretofore registered

under Chapter 7 of the Laws of the Special Session

of 1934 and whose license has not been revoked shall

1 (CLerK’s Nore—These documents are printed as an Appendix to the

Statement as to Jurisdiction in No. 210 and are not reprinted here.)

ee

4

not be required to register or to pay an additional fee

under the terms of this section.’’ (Emphasis' ours.)

It is noted, by reading the entire section, that the pur-

pose of this provision is for the Bureau of Revenue to ob-

tain information concerning the name of the particular

business, kind of business transacted, the location of the

place of business, and various other miscellaneous infor-

mation which must necessarily be obtained by the Bureau

of Revenue for their records. The last sentence of this

act uses the word ‘‘register,’’ showing that while the sec-

tion refers to a license, it actually means merely that regis-

tration is required for the purpose of administering the

act. Nowhere does the Appellant complain as to the amount

of the registration fee as being in excess of what the ex-

pense would actually be in registering the information

desired.

The Appellant selected the State of New Mexico in

which to locate its broadcasting station, and indirectly

admits that it is an intrastate business, but that such

business should be considered interstate. If Appellant

should be permitted to do intrastate business without regis-

tering, which 4s mandatory on practically all businesses in

the State of New Mexico, then it could be more justly said

that other businesses were being discriminated against

by not compelling the Appellant to likewise register and

pay the $1.00 fee.

Regardless of whether this statute is construed to re-

quire a license in the strict sense of the word, or is con-

strued as merely requiring registration, it is obviously

constitutional. (See the recent decision of the Supreme

Court of the United States in the case of Union Brokerage

Company v. Jensen, et al., 322 U. 8. 202, 64 8. Ct. 967

88 L. Ed. ——, 152 A. L. R. 1072. Also see Postal Tele-

graph Cable Company v. Mayor, etc., of Baltimore, 156

_— :

5

U. S. 210, 15 S. Ct. 356, 39 L. Ed. 399. Also see Pacific

Telephone & Telegraph Co. v. Tax Commission of Wash.,

297 U. S. Reports, Page 403, and 301 U. S. Reports, Page

183.)

It should be noted that inasmuch as Appeliant’s physical

activities are entirely confined to the State of New Mexico,

no other State could require a license or registration fee

from Appellant.

II

Appellant Has Plain, Speedy and Efficient Remedy at Law

or in Equity in the Courts of New Mesxico

The District Court, in its opinion, beginning at Page 4

of the copy filed herewith as Appendix ‘‘A,’’* sets forth

the remedy at law provided by ‘‘The Act of 1935, supra’’,

and in the following paragraph, same page sets forth the

alternative remedy of the taxpayer by equitable relief

provided by the Constitution of the State of New Mexico,

Article 6, Section 13, and the case of Lougee v. New Mexico

Bureau of Revenue Commission, 42 N. M. 115, 76 P. 2d 6,

which clearly establishes that a plain, speedy and efficient

remedy at law or in equity in the Courts of New Mexico

is and has been available to Appellant.

In the recent case of Hillsborough Tp. v. Cromwell,

66 S. Ct. 445, decided January 28, 1946, at Page 448 the

Court said:

“Sec, 267 of the Judicial Code, 28 U. S. C. $384,

98 U.S. C. A. § 384, provides that suits in equity shall

| not be sustained in the federal courts ‘in any case

where a plain, adequate, and complete remedy may

be had at law.’ That principle has long been recog-

nized as having ‘peculiar force’ in cases where the

federal courts were asked to enjoin the collection of

a state tax. Matthews v. Rodgers, 284 U. 8. 521, 525,

2 (Not reproduced here.)

6

52 S. Ct. 217, 219, 76 L. Ed. 447, and cases cited.

‘The scrupulous regard for the rightful independ-

ence of state governments which should at all times

actuate the federal courts, and a proper reluctance

to interfere by injunction with their fiscal operations,

require that such relief should be denied in every case

where the asserted federal right may be preserved

without it.’ Id., 284 U. S. page 525, 52 S. Ct. page 219.

Where the remedy at law is ‘plain, adequate, and com-

plete,’ it is the one which must be pursued even for

the protection of any federal right. That practice of

the federal equity courts was given further recognition

and sanction by Congress in the Johnson Act, 48 Stat.

775, as amended, 50 Stat. 738, § 24 (1) of the Judicial

Code, 28 U.S. C. § 41 (1), 28 U.S. C. A. § 41 (1), which

provides that ‘no district court shall have jurisdiction

of any suit to enjoin, suspend, or restrain the assess-

ment, levy, or collection of any tax imposed by or

pursuant to the laws of any State where a plain, speedy,

and efficient remedy may be had at law or in equity in

the courts of such State.’* ° °”’

Wuenerore, Appellee respectfully submits this statement

showing that the questions upon which the decision of this

cause depends are so unsubstantial as not to need further

argument and Appellee respectfully moves the Court to

dismiss this appeal or, in the alternative, affirm the decree

of the District Court.

Respectfully submitted,

C. C. McCu.ion,

Attorney General,

Santa Fe, New Mezico;

Tuos. C. McCarry,

Assistant Attorney General,

Santa Fe, New Mezico,

Counsel for Appellee. :

(5495)